Property Brokers Limited v Hastings McLeod Real Estate Limited

[2020] NZHC 665

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2019-476-41

[2020] NZHC 665

BETWEEN

PROPERTY BROKERS LIMITED

First Plaintiff

PROPERTY BROKERS (CANTERBURY) LIMITED

Second Plaintiff

PROPERTY BROKERS (WEST COAST) LIMITED

Third Plaintiff

AND

HASTINGS MCLEOD REAL ESTATE LIMITED

First Defendant

J C MCLEOD

Second Defendant

Hearing:	On the papers
Counsel:	A Brown QC for the Plaintiffs JWA Johnson for the Defendants
Judgment:	31 March 2020

JUDGMENT OF WYLIE J

[As to costs]

This judgment was delivered by Justice Wylie On 31 March 2020 at 3 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:           Fitzherbert Rowe, Palmerston North

Wynn Williams, Auckland

Counsel:            A Brown QC, Auckland

PROPERTY BROKERS LTD v HASTINGS MCLEOD REAL ESTATE LTD [2020] NZHC 665 [31 March 2020]

[1]                 I refer to my reserved judgment dated 26 February 2020. I granted an interlocutory injunction in favour of the plaintiffs and against the defendants and held that the plaintiffs were entitled to their reasonable costs and disbursements in bringing the application. I invited the parties to file memoranda in this regard.1

[2]                 I have received memoranda from counsel.2 The plaintiffs seek costs on a 2B basis in the sum of $17984.75 together with disbursements of $3201.96 - in total

$21186.71. The defendants agree that the interlocutory application is appropriately categorised as category 2 and that band B is also appropriate. They differ however from the plaintiffs’ costs calculation in four respects:

(a)an allowance for second counsel;

(b)costs for the commencement of the substantive proceeding;

(c)costs for preparing for the first case management conference; and

(d)costs for appearing at the first case management conference.

I deal with each objection in turn.

[3]                 The plaintiffs claim $896.25 for second counsel. I agree with the defendants that costs should not be allowed for second counsel. The application was relatively straightforward. It was dealt with on the affidavits that had been filed by both parties. While there were a number of affidavits, they were narrow in scope and of no great complexity. The legal arguments were also largely straightforward; they involved the application of well known principles to the factual situation presented. Written submissions were exchanged in advance of the hearing. In short there was no great legal or factual difficulty involved. I do not consider that second counsel was necessary for the effective presentation of the plaintiffs’ case. I disallow the claim for second counsel. This will also alter the claim for disbursements because the plaintiffs claimed the travel and accommodation costs of two counsel.

1         Property Brokers Ltd v Hasting McLeod Real Estate Ltd [2020] NZHC 27I.

2I apologise to counsel for the delay in getting this judgment out. Its delivery has been delayed because of the COVID-19 crisis.

[4]                 The plaintiffs have claimed $7170.00 on account of the costs incurred in preparing the substantive proceeding. The defendants point out that the matter before me was not the substantive proceeding but rather an interlocutory application for an interim injunction. Under r 14.8 of the High Court Rules 2016 the costs of an opposed interlocutory application (other that for summary judgment) are to be fixed in accordance with the costs rules unless there are special reasons to the contrary. In effect, costs on interlocutory applications should generally be dealt with separately and not as part of the substantive proceedings. The rules reflect the position that the merits of an interlocutory application may differ from the merits of the substantive proceeding.3

[5]                 Scale costs on the filing of an interlocutory application are $1434.00 and not the $7170.00 claimed. I reduce the sum allowed accordingly. I note that the substantive application remains on foot. Costs for the commencement of the proceeding will fall for determination when that proceeding is determined - either following a judgment or a notice of discontinuance.

[6]                 For the same reason the plaintiffs cannot now recover the fees incurred when they filed their statement of claim.

[7]                 The plaintiffs claim $956.00 for preparing for the first case management conference and $717.00 for appearing at that conference. They also claim $956.00 for preparing for a first or subsequent case management conference or mentions hearing and $478.00 for appearing at that hearing. The defendants argue that there was no case management conference on the interlocutory application. Rather there was a call over before Osborne J on 3 February 2020 to get the interlocutory application ready for hearing. The plaintiffs filed a memorandum for that call over and they appeared.

[8]                 I disallow the claims made in relation to the first case management conference (any claim for costs in this regard can be dealt with as part of the costs on the substantive proceedings) but allow the claims made in regard to the call over (referred to in the plaintiffs’ memorandum as the first or subsequent case management conference or mentions hearing).

3      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

[9]                 Except as noted in [3] and [6] there was no challenge to the claim for disbursements.

[10]Accordingly I make an award of costs in favour of the plaintiffs in the sum of

$8723.50. The liability of the defendants is joint and several. I am unable to certify the disbursements payable as adjusted figures will have to be provided by the plaintiffs. I anticipate that counsel will be able to reach agreement in this regard but direct that if there is any difficulty the same is to be referred to the Registrar.

Wylie J